[ v17 p23 ]
17:0023(11)CA
The decision of the Authority follows:
17 FLRA No. 11
DEPARTMENT OF DEFENSE, NATIONAL GUARD
BUREAU, INDIANA AIR NATIONAL GUARD
INDIANAPOLIS, INDIANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3029, AFL-CIO
Charging Party
Case No. 5-CA-1202
and
DEPARTMENT OF DEFENSE, NATIONAL GUARD
BUREAU, INDIANA AIR NATIONAL GUARD
INDIANAPOLIS, INDIANA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3098, AFL-CIO
Charging Party
Case No. 5-CA-1262
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding, granting the General Counsel's
Motion for Summary Judgment, finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Respondent filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings /1A/ of
the Judge and finds that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's Decision
and the entire record, the Authority hereby adopts the Judge's findings,
conclusions and recommended Order only to the extent consistent
herewith.
In Case No. 5-CA-1262, the Authority adopts the Judge's finding, for
the reasons he expressed, that the Respondent violated section
7116(a)(1) and (6) of the Statute by refusing to implement the Decision
and Order of the Federal Service Impasses Panel (FSIP) in Case No. 80
FSIP 39(a), requiring the parties to adopt language in their collective
bargaining agreement concerning "Hours of Work, Travel and Temporary
Duty, and Grooming Standards." However, contrary to the Judge, the
Authority finds that the Respondent did not violate section 7116(a)(1)
and (6) of the Statute by refusing to follow the FSIP Decision requiring
the parties to adopt language in their collective bargaining agreement
concerning "Wearing of the Military Uniform, Special Equipment, and
Maternity Clothing," all of which dealt with the wearing of the military
uniform. With regard to similar circumstances in Case No. 5-CA-1202,
the Authority also finds, contrary to the Judge, that the Respondent's
refusal to follow the FSIP Decision in Case No. 81 FSIP 63 requiring the
parties to adopt language in their collective bargaining agreement
concerning "Technician Uniform and Dress" and to retain language of
their current contract concerning "Protective Clothing and Equipment" is
not a violation of section 7116(a)(1) and (6) of the Statute. All of
the proposals in Case No. 5-CA-1202 deal with the wearing of the
military uniform.
Subsequent to the issuance of the Judge's Decision in these two
cases, the Authority issued its Decision and Order upon Remand in
Division of Military and Naval Affairs, State of New York, Albany, New
York, 15 FLRA No. 65 (1984), petition for review filed, New York
Council, Association of Civilian Technicians v. FLRA, No. 84-4128 (2nd
Cir. Sept. 11, 1984), in which it held that the determination by the
National Guard Bureau that technicians must wear the military uniform
while performing technician duties constitutes management's choice of
"methods, and means of performing work" within the meaning of section
7106(b)(1) of the Statute, and thus, while this requirement may be
bargained at the election of the agency, it is not within the duty to
bargain. Consequently, the Authority found that the failure of the
Respondents to cooperate in the final Decision and Order of the Panel
was not violative of section 7116(a)(1) and (6) of the Statute. Based
on this rationale as expressed more fully in Division of Military and
Naval Affairs, State of New York, the Authority finds that the failure
in these cases of the Respondent, Indiana Air National Guard, to comply
with the final Decisions and Orders of the Federal Service Impasses
Panel dealing with the wearing of the military uniform did not
constitute a violation of section 7116(a)(1), (5) and (6) of the
Statute. Accordingly, the allegations in these cases in that regard
shall be dismissed.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of Defense, National Guard Bureau,
Indiana Air National Guard, Indianapolis, Indiana shall:
1. Cease and desist from:
(a) Failing or refusing to cooperate in and comply with the Decision
and Order of the Federal Service Impasses Panel in Indiana Air National
Guard, Hulman Field, Terre Haute, Indiana, and Local 3098, American
Federation of Government Employees, AFL-CIO, Case No. 80 FSIP 39(a)
(1981), regarding "Hours of Work, Travel and Temporary Duty, and
Grooming Standards."
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel in 80 FSIP 39(a) regarding "Hours of Work, Travel and
Temporary Duty, and Grooming Standards."
(b) Post at its facilities wherever unit employees are located,
copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall be
signed by the Commanding General, Indiana Air National Guard, or his
designee, and shall be posted for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced or covered by
any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 5-CA-1202 and
that portion of the complaint dealing with proposals on the wearing of
the military uniform in Case No. 5-CA-1262 be, and they hereby are,
dismissed.
Issued, Washington, D.C., February 26, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to cooperate in and comply with the Decision and
Order of the Federal Service Impasses Panel in Indiana Air National
Guard, Hulman Field, Terre Haute, Indiana, and Local 3098, American
Federation of Government Employees, AFL-CIO, Case No. 80 FSIP 39(a)
(1981), regarding "Hours of Work, Travel and Temporary Duty, and
Grooming Standards." WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL comply with the Decision and Order of the Federal Service Impasses
Panel in 80 FSIP 39(a) regarding "Hours of Work, Travel and Temporary
Duty, and Grooming Standards."
. . . (Agency or Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region V,
Federal Labor Relations Authority whose address is: Suite 1359-A, 175
W. Jackson Boulevard, Chicago, Illinois 60604 and whose telephone number
is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-1202
Case No. 5-CA-1262
Claire R. Morrison, Esq.
For General Counsel of FLRA
Michael A. Kiefer, Esq.
For Respondent
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute (hereinafter called the Statute), 92
Stat. 1191, 5 U.S.C. 7101 et seq.
On June 22, 1981 a charge was filed in Case No. 5-CA-1202 by American
Federation of Government Employees (AFGE), Local 3029, AFL-CIO (herein
called AFGE Local 3029) against Department of Defense, National Guard
Bureau, Indiana Air National Guard, Indianapolis, Indiana, (herein
called National Guard and/or Respondent) alleging that Respondent
violated Sections 7116(a)(1), (2), (5), (6) and (8) of the Statute. The
above described charge was amended on July 27, 1981 alleging violation
of Section 7116(a)(1), (5) and (6) of the Statute. On August 10, 1981
American Federation of Government Employees (AFGE), Local 3098, AFL-CIO
(hereinafter called AFGE Local 3098) a charge was filed in Case No.
5-CA-1262 against National Guard alleging that Respondent violated
Section 7116(a)(1), (5) and (6) of the Statute. On August 28, 1981,
based upon the foregoing, the General Counsel of the Federal Labor
Relations Authority (FLRA), by the Director for Region 5, issued an
Order Consolidating Cases, Complaint and Notice of Hearing alleging that
Respondent violated Section 7116(a)(1), (5) and (6) of the Statute
because Respondent failed and refused to bargain in good faith
concerning the issue of civilian attire and protective clothing and
equipment for bargaining unit employees and because Respondent failed
and refused to cooperate in the impasse procedures and decision. On
September 28, 1981 Respondent filed a Consolidated Motion to Dismiss and
Answer and on October 2, 1981 filed an Amended Consolidated Motion to
Dismiss and Answer. National Guard's Answer admitted certain matters
but denied that Respondent had violated the Statute. The General
Counsel of FLRA filed a Response and Opposition to Respondent's Amended
Motion to Dismiss and General Counsel's Motion For Official Notice.
Respondent then filed a reply to this "Response" of the FLRA General
Counsel. In addition to the Motion to Dismiss and Answer and the
Amended Consolidated Motion to Dismiss and Answer, which was forwarded
to the office of Administrative Law Judges, Respondent filed a Motion to
Compel Interrogatories, directed to Howard Solomon, Executive Director
of the Federal Service Impasses Panel (FSIP); Motion for Depositions to
be taken of every member of FSIP; and Petition to Revoke Subpena which
had been served upon Alfred Ahner, Adjutant General of Indiana. The
General Counsel filed Oppositions to each of these Motions and
Petitions. All said matters will be disposed of later in this Decision.
The General Counsel for the FLRA filed a Motion For Summary Judgment on
October 7, 1981 and on November 27, 1981 Respondent filed Respondent
Indiana Air National Guard's Memorandum in Opposition to the General
Counsel's Motion For Summary Judgment and Statement of Material Facts.
It has been recognized that summary judgment procedures and motion to
dismiss are appropriate procedures under the Statute to avoid useless,
expensive and time consuming trials where there are no genuine issues of
material fact to be tried. State of Nevada National Guard, 7 FLRA No.
37 (1981) (hereinafter called the Nevada National Guard Case). Upon
examination the General Counsel's Motion For Summary Judgment and
Respondent's Response and Respondent's Amended Consolidated Motion to
Dismiss and the General Counsel's Response, it appears that there are no
genuine issues of material fact /1/ and only legal issues are involved.
All parties have had an opportunity to present written argument
concerning such legal issues.
General Counsel's Motion for Summary Judgment is hereby granted /2/
in accordance with the following:
Findings of Fact
At all times material herein, Respondent maintained a facility in
Fort Wayne, Indiana (hereinafter called the Fort Wayne Activity) and a
facility in Terre Haute, Indiana (hereinafter called the Terre Haute
Activity). At all times material herein National Guard has recognized
AFGE Local 3029 as the exclusive collective bargaining representative
for a unit that includes all federally paid air technicians at the Fort
Wayne Activity and has recognized AFGE Local 3098 as the exclusive
collective bargaining representative for a unit that includes all
employees of the National Guard at the Terre Haute Activity.
At all times material herein, Major General Alfred Ahner, Adjutant
General; Lt. Col. Ronald Beretta, Personnel Management Specialist;
Major William V. Miller, Assistant Aircraft Maintenance Officer; and
Lt. Col. Francis D. Cramer, Base Services Officer, have been supervisors
and/or agents of the National Guard.
On May 20, 1980, Robert J. Brendt, on behalf of AFGE Local 3029 and
Major General Alfred A. Ahner and Col. Dale Smiley, on behalf of the
National Guard, entered into a Memorandum of Understanding for
Negotiation of a Collective Bargaining Agreement. The Memorandum, which
was effective upon signing, provided the ground rules for negotiating
the collective bargaining agreement including a provision that in the
event an impasse was reached and mediation efforts were unsuccessful,
"either party may request that the impasse be submitted to the Federal
Service Impasses Panel subject to the regulations of the Panel . . . "
On March 11, 1981 Martin B. Smith, on behalf of AFGE Local 3029
submitted a Request for Assistance to FSIP with respect to the issue of
technician uniform and dress and on a related issue of protective
clothing and equipment.
On May 22, 1981 FSIP, through its Executive Director Howard Solomon,
issued a Decision and Order in State of Indiana, Indiana Air National
Guard, Case No. 81 FSIP 63, directing National Guard to adopt the AFGE
Local 3029's proposal on technician uniform and dress and directing the
parties to withdraw their proposals regarding protective clothing and
equipment and retain the language of their current contract. Respondent
has not complied with Decision and Order of FSIP issued in Case No. 81
FSIP 63.
On February 15, 1978, Larry K. Austin and David D. Smith, on behalf
of AFGE Local 3098, and Major General Alfred F. Ahner and Col. Frank
Hettlinger, on behalf of the National Guard, entered into a Memorandum
of Understanding for Negotiation of a Collective Bargaining Agreement,
which was effective upon signing. This Memorandum provided in the event
of an impasse and mediation efforts were not successful, "either party
may request that the impasse be submitted to the Federal Service
Impasses Panel subject to the regulations of the Panel." On May 28,
1980, Larry Austin, on behalf of the AFGE Local 3098, submitted a
Request for Assistance to FSIP in which he requested the assistance of
FSIP on several issues, including, but not limited to, hours of work,
travel and temporary duty, grooming standards, wearing of the military
uniform, special equipment, and maternity clothing. On July 8, 1980,
FSIP, in Case No. 80 FSIP 39, informed AFGE Local 3098 that FSIP was
declining to assert jurisdiction inasmuch as it had been determined that
voluntary efforts to reach settlement had not been exhausted. FSIP
directed that negotiations should be resumed with medication assistance
as necessary. In or about March 1981, AFGE Local 3098 submitted a
memorandum to the FSIP requesting the assistance on several issues,
including hours of work, travel and temporary duty, grooming standards,
wearing of the military uniform, special equipment and maternity
clothing.
On July 9, 1981, the FSIP issued its Decision and Order on the issues
presented to it by AFGE Local 3098 in Indiana Air National Guard, Hulman
Field, Case No. 80 FSIP 39(a). On July 22, 1981, AFGE Local 3098, by
means of a memorandum, requested that Respondent set a date for a
meeting for the settlement of the items decided by the FSIP in Case No.
80 FSIP 39(a). On August 5, 1981, National Guard, by its agent, Lt.
Col. Francis D. Cramer, wrote a memorandum to the Union stating that
Respondent considered the FSIP Decision and Order in Case No. 80 FSIP
39(a) to be in error regarding its decision on uniform and travel
issues. Respondent further stated that it was indefinitely postponing
further contract negotiations with AFGE, Local 3098. National Guard has
at no time complied with the FSIP Decision and Order issued by in Case
No. 80 FSIP 39(a).
Discussion and Conclusions
Respondent filed a Motion to Dismiss the subject complaint because
FSIP and FLRA "have no jurisdiction over the Indiana Air National Guard
and further, for the reason that Consolidated Complaint fails to name
the proper party respondent, an agency within the meaning of 5 U.S.C.
7103(a)(3)." National Guard's contentions that FSIP and FLRA have no
jurisdiction over National Guard and that National Guard is not an
agency subject to the Statute are rejected. FSIP and FLRA have
jurisdiction over National Guard and the Air Technicians and other
employees and National Guard clearly is an agency subject to the
requirements of the Statute. State of California National Guard Case, 8
FLRA No. 11 (1982) (hereinafter called the California National Guard
Case; and Nevada National Guard Case, supra and Division of Military
and Naval Affairs, State of New York, 8 FLRA No. 33 (1982) (hereinafter
called the New York Case.)
In relation to Respondent's contention that the wrong party
Respondent was named in the subject cases, National Guard seems to urge
that the parties to the two Memoranda of Understanding are the two AFGE
Locals, respectively, and Alfred F. Ahner, the Adjutant General, State
of Indiana. Respondent urges that statutorily the air technicians are
employed by the Adjutant General and that the Adjutant General was the
party dealing with the two AFGE Locals and that he was somehow dealing
as an individual, and not as an agent of the National Guard. Thus,
Respondent disputes the legal conclusion that the memoranda were between
National Guard and the two respective AFGE locals. It must be noted
that Respondent admitted that Adjutant General Ahner was a supervisor
and/or agent of the National Guard and that Respondent has recognized
both AFGE Locals as the exclusive collective bargaining representatives
for its respective activities. Additionally, Adjutant General Ahner
signed the two memoranda over the title "Major General, Ind. ARNG, the
Adjutant General", and they were each signed by the local in "ANG, Air
Commander." In light of all of the foregoing it is concluded that the
two memoranda were between Respondent and the respective AFGE local and
that National Guard was the appropriately named Respondent. Cf. State
of California National Guard Case, supra; and Nevada National Guard
Case, supra. In any event, as is noted above the AFGE locals were the
collective bargaining representatives of the air technicians employed by
Respondent and it was these AFGE locals that requested FSIP's assistance
with respect to collective bargaining. The collective bargaining
relationship was between the AFGE locals and Respondent, FSIP's
Decisions and Orders ran to Respondent and thus obliged Respondent to
act.
Respondent similarly urges that Decisions and Orders issued by FSIP
in Cases Nos. 80 FSIP No. 39(a) and 81 FSIP No. 63 were beyond the
authority granted FSIP and were inconsistent with Chapter 74 Titles,
United States Code. Such contentions have been rejected by the FLRA
California National Guard Case, supra; Nevada National Guard Case,
supra; and New York Case, supra.
Finally, Respondent urges that the Motion For Summary Judgment should
be denied because Respondent has not completed its discovery.
Respondent urges that the discovery would disclose issues of fact which
would justify setting aside the FSIP award. Respondent then states in
its Opposition that these facts are unknown to the Respondent, but are
solely within the knowledge of the FSIP members, the objects of
discovery procedures.
The allegedly disputed facts involve two basic assertions. The first
deals with whether the FSIP Decisions and Orders were legally and
statutory sufficient. It is concluded that FLRA has determined that
FSIP Decisions and Orders similar to the two involved in the subject
case are legally and statutory sufficient. California National Guard
Case, supra; Nevada National Guard Case, supra; and New York Case,
supra. Respondent also alleges that the action of FSIP resulted from
bias and prejudice. It is now clear that the propriety of FSIP
Decisions are reviewable in this proceeding. Nevada National Guard
Case, supra. The extent of reviewability of the FSIP Decisions was
discussed at length by Judge Arrigo in his Decision in the New York
Case, supra, but FLRA in its Decision chose specifically not to adopt
Judge Arrigo's reasoning and not to explicate the scope of review of
FSIP Decisions. However, in light of the following, it is clear that
whatever the scope of review of FSIP Decisions, the Decisions in
question would 0e affirmed. New York Case, supra. Respondent contends
that, if permitted to pursue discovery with respect to the members of
FSIP, facts would be elicited which would establish bias and prejudice
on the part of FSIP. In support of its contention that discovery would
successfully produce such evidence of bias and prejudice Respondent
relies solely on an affidavit of Milton Thomas Gerock, a Major in the
North Carolina Air National Guard. Maj. Gerock attended a labor
relations course in August of 1979 at which FSIP Member Beverly K.
Schaffer spoke. According to Maj. Gerock FSIP member Schaffer allegedly
stated that "all but a very few of the matters considered by FSIP, to
that point, concerned the wearing of the military uniform by Members of
the National Guard. She then turned to me and said, in a tone of
exasperation, that FSIP had decided the uniform issue once and for all
and that if any other group to pursue this issue would be a waste of
fine . . . ." It is concluded that FSIP Member Schaffer's statement is
very vague and ambiguous and is not sufficient to establish bias and
prejudice on her part or that of FSIP and is not sufficient to permit
Respondent to engage in a fishing expedition in order to try to discover
if there is any evidence extant to sustain its allegation of bias and
prejudice. Accordingly, it is concluded that Respondent's allegation is
too conjectural and therefore, there is no substantial issue of material
fact. /3/
Finally, based on the FLRA's decisions in the California National
Guard Case, supra, the New York Case, supra, the Nevada National Guard
Case, supra, and the rational therein, and because Respondent has not
shown any legal justification for its non-compliance with the two FSIP
Decisions, it is concluded that Respondent's failure to comply with the
Decisions and Orders of FSIP in Cases No. 81 FSIP 63 and 80 FSIP 39(a)
constitutes violations of Sections 7116(a)(1) and (6) of the Statute and
therefore General Counsel of the FLRA's Motion For Summary Judgment is
granted and Respondent's Motion to Dismiss is denied. In view of these
findings it is unnecessary to pass upon whether the Respondent's conduct
also violated Sections 7116(a)(5) of the Statute.
Having found and concluded that Respondent violated Section
7116(a)(6) and (1) of the Statute; I recommend that the Authority issue
the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of Defense, National Guard Bureau,
Indiana Air National Guard shall:
1. Cease and desist from:
(a) Failing and refusing to comply and cooperate with Decisions
and Orders of the Federal Service Impasses Panel issued in Case
Nos. 80 FSIP 39(a) and 81 FSIP 63.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of Executive Order 11491, as amended, and the
Federal Service Labor-Management Relations Statute:
(a) Comply and cooperate forthwith with Decisions and Orders of
the Federal Service Impasses Panel issued in Case Nos. 80 FSIP
39(a) and 81 FSIP 63.
(b) Post at its facilities copies of the attached Notice marked
Appendix on Forms to be furnished by the Authority. Upon receipt
of such forms, they shall be signed by the Commanding General,
Indiana Air National Guard, and shall be posted and maintained by
him for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Commanding General shall
take reasonable steps to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 5, Federal Labor
Relations Authority, in writing within 30 days from the date of
this Order as to what steps have been taken to comply herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: March 8, 1982
Washington, D.C.
APPENDIX
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to comply with Decisions and Orders of the
Federal Service Impasses Panel issued in Case Nos. 80 FSIP 39(a) and 81
FSIP 63. WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute. WE
WILL comply and cooperate forthwith with Decisions and Orders of the
Federal Service Impasses Panel issued in Case Nos. 80 FSIP 39(a) and 81
FSIP 63, and will otherwise cooperate in impasses procedures and
decisions as required by the Federal Service Labor-Management Relations
Statute.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature) This Notice must remain posted for
60 consecutive days from the date of posting and must not be altered,
defaced, or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Federal Labor Relations Authority, Region Five, whose address is 175
West Jackson Boulevard, Chicago, Illinois 60604 and whose telephone
number is (312) 886-3468.
/1A/ In its exceptions, the Respondent raises the same jurisdictional
issue argued before the Judge. The Authority agrees with the Judge's
ruling; Respondent is clearly an agency within the meaning of section
7103(a)(3) of the Statute. Indeed, while that section of the Statute
specifically excludes certain agencies, the National Guard is not among
them.
--------------- FOOTNOTES$ ---------------
/1/ All alleged issues of material fact are hereinafter disposed of.
/2/ Respondent's Motion to Dismiss is accordingly denied.
/3/ Accordingly, to the extent any of the motions for discovery are
pending before me they are denied.